Listeria Suits Could Snowball: Lawyers Aim for Class-Action Status - Detroit Free Press - February 17, 1999

By: Heather Newman
Detroit Free Press
February 17, 1999

The handful of lawsuits filed against Sara Lee Corp. and Thorn Apple Valley Inc. might multiply faster than you can say "hot dog."

That's the next likely step in the listeria contamination scare, now that the companies have recalled millions of pounds of hot dogs and lunch meat.

Lawyers filing the suits are scrambling to collect clients so their cases will be certified as class-action suits.

Attorney Kenneth B. Moll of Chicago, whose firm has filed two suits against Sara Lee and has another on the way, said he is interviewing the families of 300 people nationwide who claim they fell ill. That's far more than the 82 people the Centers for Disease Control and Prevention identified as being sickened by meat made at Sara Lee's Bil Mar Foods plant near Zeeland. Moll said his firm is working with 18 families in which someone has died. The CDC has linked 12 adult deaths and five miscarriages to the Bil Mar outbreak.

Harvey Chayet of Southfield and his law partners are interviewing dozens of people who responded to newspaper ads they ran in Detroit, Pontiac, Flint, Lansing, Grand Rapids, and Saginaw.

Ads placed by Thurswell, Chayet & Weiner, under the headline "Public Health Alert," urged people who believe they might have become ill from listeria to contact the law firm. "It seems to be snowballing," Chayet said.

Attorneys Randy Hooper in Minneapolis and Britt Tinglumn in Seattle ran ads in Tuedays USA Today. Hopper said they havn't filed any listeria suits yet and might not file cases if the people that want to sue didn't get sick. "It's very, very expensive to try these cases," Hopper said, because of the cost of hiring scientists, expert witnesses and others to make a solid case.

Sara Lee spokesman Jeffrey Smith said the company cannot comment on the ongoing lawsuits. Thorn Apple Valley representatives did not return phone calls.

Sara Lee recalled 35 million pounds of hot dogs and lunch meat in December. Thorn Apple Valley recalled 30 million pounds of ready-to-eat lunch meat in January after government food safety inspectors said samples inside its plant Forrest City, Ark., tested positive for listeria. Federal agencies have reported no illnesses linked directly to the Thorn Apple Valley products.

Patrick Geary of Grand Rapids, an attorney with a product liability defense practice for 25 years, said companies will attempt to verify that people ate their products and did suffer listeriosis. If they see reasonable proof, they'll most likely settle.

“That’s when the crunch times come," he said. “I’m sure all their insurance carriers are on notice and paying attention."

The listeria suits are the latest high-profile examples of an explosion in product liability suits against food manufacturers, says Lars Noah, associate law professor at the University of Florida and a food specialist. Here's why those cases are on the rise:

• An alert public. The more that people hear about the famous food-contamination cases, the more they suspect their illnesses could have been caused by what they ate.
• Better disease testing. Nowadays doctors can spot when someone has listeriosis as opposed to a bad case of the flu.
• Deep pockets. The chance to sue a major food manufacturer opens whole vistas of potential cash. Until recent years, Noah said, most food poisoning cases were small-change lawsuits against restaurants.

All that spells trouble for public companies like Sara Lee and Thorn Apple Valley, which must be prepared for trouble like this, said Jeffrey Caponigro of Southfield, author of "The Crisis Counselor."

"You want to make the crisis look like it's not taking over the company," he said. "You can't seem like you're being evasive or running scared."

The 800-numbers used by Sara Lee and Thorn Apple Valley for concerned customers are a good example, he said. (Bil Mar Foods' number is 1-800-247-8339; Thorn Apple Valley's is 1-800-839-2427.)

Moll pointed out that Sara Lee ran full-page ads in 60 newspapers nationwide, but not until a month after the recall.

Gerald Meyers, a professor of crisis management at the University of Michigan business school, said the companies have not moved fast enough.

“That thing has been building since last July. You didn't have to be a rocket scientist to know there was a problem. That problem could have been spotted in the early days. It was allowed to progress and escalate.

“They did not declare they were on the side of the public. Did you see them on the 7 o'clock news saying they're sorry? They didn't. They're hiding."

But it's not too late, Meyers said. When results are available, the companies could publicize them immediately. Not a bad strategy, Meyers said.

Contrition is a more effective option, Meyers said. " you say, 'Look, I'm sorry, this is terrible. We'll do whatever's necessary to console the grieved, pay the damages and never let this happen again.' "

If the companies are truly responsible, put the CEO on television to show his concern and put himself out there to be criticizes.

"For $100,000, that's the advice I'd give them." he said.